PHILLIPS v. COMMONWEALTH (59862)

FROM THE COURT OF APPEALS OF VIRGINIAPresent: All the JusticesOPINION BY JUSTICE BARBARA MILANO KEENAN

The issue presented in this appeal is whether
Code Sect. 19.2-294 bars a defendant’s conviction on two
felony charges of selling marijuana on school property, after he
had been convicted in the general district court on two
misdemeanor charges of distribution of marijuana based on the
same acts.

The parties stipulated to the following facts.
In March 1996, two arrest warrants were issued against Matthew S.
Phillips, charging him with felony offenses of selling marijuana
on the grounds of Lebanon High School in Russell County, on or
about January 19 and 24, 1996, in violation of Code
Sect. 18.2-255.2. One week later, two more arrest warrants
were issued against Phillips charging him with misdemeanor
offenses of distributing less than a half-ounce of marijuana on
or about January 19 and 24, 1996, in violation of Code
Sect. 18.2-248.1, based on the same acts as the felony
charges.

On October 29, 1996, Phillips appeared in the
General District Court of Russell County on all four charges. At
that hearing, Phillips was tried and convicted on the two
misdemeanor charges and waived a preliminary hearing on the two
felony charges. The grand jury later indicted Phillips on the two
felony charges.

Phillips filed a motion to quash the two felony
indictments in the Circuit Court of Russell County. He argued
that prosecution of the felony indictments was barred by his
convictions on the two misdemeanor charges arising from the same
acts. The trial court denied the motion, ruling that Phillips had
not been subjected to successive prosecutions within the meaning
of Code Sect. 19.2-294. Phillips then entered conditional
guilty pleas to the two felony charges, as permitted under Code
Sect. 19.2-254, thereby reserving the right to appeal the
trial court’s denial of his motion to quash. The trial court
accepted the pleas and sentenced Phillips to two concurrent terms
of five years’ imprisonment, which the court suspended on the
condition that Phillips serve twelve months in jail.

Phillips noted an appeal of the felony
convictions to the Court of Appeals. In a published opinion, a
panel of the Court of Appeals affirmed the convictions, holding
that when felony and misdemeanor charges are brought at separate
times, they nevertheless are part of a single prosecution if the
cases are heard in a single, evidentiary hearing. Phillips v.
Commonwealth, 27 Va. App. 674, 680-81, 500 S.E.2d 848, 851
(1998). We awarded this appeal after the Court of Appeals denied
Phillips’ petition for a rehearing en banc.

Code Sect. 19.2-294 provides, in relevant
part:

If the same act be a violation of two
or more statutes, or of two or more ordinances, or of one
or more statutes and also one or more ordinances,
conviction under one of such statutes or ordinances shall
be a bar to a prosecution or proceeding under the other
or others.

Phillips first argues that, under the language
of Code Sect. 19.2-294, his convictions in the general
district court barred any further "proceeding" arising
out of the same acts, including the later indictments and
hearings in the circuit court on the felony charges. We do not
reach the merits of this argument, however, because Phillips
failed to raise it in the trial court. There, Phillips argued
that Code Sect. 19.2-294 barred the felony prosecutions
because all four warrants, felony and misdemeanor, were not
issued on the same date. He advanced the same argument before the
panel of the Court of Appeals. Since Phillips did not give the
trial court the opportunity to address the argument he raises
here, we decline to consider it. Rule 5:25.[1]

Phillips next argues that, in upholding his
convictions, the Court of Appeals erred in effectively overruling
its decision in Slater v. Commonwealth, 15 Va. App. 593,
425 S.E.2d 816 (1993). He asserts that, under Slater, a
prosecution begins when a criminal charge is instituted and that,
therefore, charges instituted on different dates do not arise
from a single prosecution. Phillips contends that since the
present felony warrants were not issued simultaneously with the
misdemeanor warrants, the felony charges were not part of the
same prosecution as the misdemeanor charges and were subject to
the successive prosecution bar of Code Sect. 19.2-294. We
disagree with Phillips.

Although the language of Code
Sect. 19.2-294 does not state that it provides a defense of
former jeopardy, "it amounts to such a defense in purpose
and desired effect." Epps v. Commonwealth, 216 Va.
150, 155, 216 S.E.2d 64, 68 (1975); Sigmon v. Commonwealth,
200 Va. 258, 263, 105 S.E.2d 171, 175-76 (1958). Like the Fifth
Amendment bar of former jeopardy, Code Sect. 19.2-294
prevents the Commonwealth from "subjecting an accused to the
hazards of vexatious, multiple prosecutions." Hall v.
Commonwealth, 14 Va. App. 892, 899, 421 S.E.2d 455, 460
(1992) (en banc). By its terms, the statute does not apply to
simultaneous prosecutions, because only a prior conviction
for the violation of an act will bar a later prosecution for the
same act. Thus, the question before us is whether Phillips’
felony charges were the subject of a simultaneous or a successive
prosecution.

In Slater, a defendant was charged,
based on the same act, with driving after having been adjudged an
habitual offender, a felony offense, and driving while under the
influence of alcohol, a misdemeanor offense. As noted by the
Court of Appeals in Phillips, a single evidentiary hearing
was conducted in Slater in the general district court,
involving a trial on the misdemeanor charge and a preliminary
hearing on the felony charge. The defendant was convicted on the
misdemeanor charge and the felony charge was certified to the
grand jury of the circuit court, where the defendant was later
indicted, tried, and convicted of the felony charge. Phillips,
27 Va. App. at 678, 500 S.E.2d at 850.

The Court of Appeals concluded in Slater
that the defendant was not subjected to a successive prosecution
on the felony charge. 15 Va. App. at 596, 425 S.E.2d at 817. In
reaching this decision, the Court stated that "the time of
institution" of criminal charges determines whether multiple
charges based on the same act are simultaneous or successive. Id.
The Court also relied on Freeman v. Commonwealth, 14 Va.
App. 126, 414 S.E.2d 871 (1992), stating that when "charges
are brought simultaneously, the amenability of one to early
conclusion while the other requires further proceedings, does not
alter the fact that the proceedings are concurrent, not
successive." Slater, 15 Va. App. at 595, 425 S.E.2d
at 817.

In the present case, the Court of Appeals
distinguished its holding in Slater by stating that the
simultaneous initiation of criminal charges is not the exclusive
factor in determining whether those charges have been resolved in
a simultaneous prosecution. The Court stated that an overriding
factor, which was also present in Slater, is "whether
the offenses were prosecuted in a single, concurrent evidentiary
hearing." Phillips, 27 Va. App. at 680, 500 S.E.2d at
851. Thus, the Court concluded that when "felony and
misdemeanor charges are instituted at separate times, but are
heard simultaneously in a single proceeding, they are part of a
single prosecution, even though jurisdictional limitations
necessitate that they be concluded in different courts." Id.
at 680-81, 500 S.E.2d at 851.

We conclude that the Court of Appeals properly
limited its holding in Slater to the particular facts
presented in that case. The procurement of arrest warrants on
different dates does not automatically trigger the successive
prosecution bar of Code Sect. 19.2-294. Since the bar is
intended to protect an accused from the "hazards of
vexatious, multiple prosecutions," the bar does not preclude
the prosecution of charges in a single, evidentiary hearing, even
though the arrest warrants were obtained on different dates. In
such a situation, the accused is not subjected to a greater
burden than when the charges are brought simultaneously and heard
together. The accused conducts his defense based on the same
trial sequence and faces the same potential for anxiety, expense,
and punishment.

We also agree with the Court of Appeals’
conclusion in this case that the amenability of the misdemeanor
charges to an early conclusion in the general district court did
not result in a successive prosecution of the felony charges in
the circuit court. SeeSlater, 15 Va. App. at 595,
425 S.E.2d at 817; Freeman, 14 Va. App. at 129, 414 S.E.2d
at 873. In a criminal case, a "prosecution" is the
process in which an accused is brought to justice from the time a
formal accusation is made through trial and final judgment in a
court of appropriate jurisdiction. SeeSigmon, 200
Va. at 267, 105 S.E.2d at 178. The present prosecutions were
simultaneous, not successive, because they were joined in a
single evidentiary hearing in the general district court. Thus,
the later events in the circuit court on the felony charges were
merely a continuation of the same prosecution.

Finally, we note that if the legislature had
intended that the statutory bar apply to such felony cases in the
circuit court, it would have provided that a conviction for a
criminal offense arising out of one act would bar a later conviction
for another offense arising out of the same act. Since the
legislature did not provide restrictive language of this nature
in Code Sect. 19.2-294, we decline to interpret the statute
in a manner that would achieve that result.

Over 100 years ago this Court held that the
conviction of Mary Arrington for the sale of "ardent
spirits" without a license was not barred by her prior
conviction for the sale of that same alcohol on a Sunday. The
Court reasoned that Arringtons one act of selling alcohol
violated two separate statutes. Arrington v. Commonwealth,
87 Va. 96, 100, 12 S.E. 224, 225-26 (1890).

Subsequently, the General Assembly enacted the
original version of Code Sect. 19.2-294 (Sect. 4775 of
the Code of 1919), which provided in pertinent part: "If the
same act be a violation of two or more statutes, . . .
a prosecution or proceeding under one . . . shall be a
bar to a prosecution under the other or others." Thereafter,
this statute was amended and now provides: "If the same act
be a violation of two or more statutes, . . . conviction
under one shall be a bar to a prosecution or proceeding
under the other or others." (Emphasis added.)

In Owens v. Commonwealth, this Court
acknowledged that the original version of Code
Sect. 19.2-294 was enacted "to remove the apparent
hardship manifest in" Arrington. 129 Va. 757, 759,
105 S.E. 531, 531 (1921). The hardship manifest there was that
Arrington "had committed but a single act, but, inasmuch as
it violated two statutes, she was convicted under both." Id.
The hardship the General Assembly intended to remove by enacting
the original version of Code Sect. 19.2-294 is equally
manifest in the present case.

Phillips single act of selling marijuana
on July 19, 1996 was a violation of Code Sect. 18.2-255.2,
prohibiting as a felony the sale of marijuana on school property,
and Code Sect. 18.2-248.1, prohibiting as a misdemeanor the
sale of not more than a half-ounce of marijuana. The same is true
of Phillips single act of selling marijuana on January 24,
1996. In my view, the legislative purpose we acknowledged in Owens
is the proper focus for the analysis of the scope of Code
Sect. 19.2-294. That focus, however, has either been
abandoned or lost under judicially created exceptions or
limitations to the application of that statute not required by
its express language.

The majority opinion correctly states the
procedural background that invokes the Code Sect. 19.2-294
issue in this case. Phillips was convicted in the general
district court for the misdemeanor violations. At that
proceeding, he waived a preliminary hearing on the felony
charges. Subsequently, the grand jury indicted Phillips on the
two felony charges, and he was ultimately tried and convicted on
both charges in the circuit court despite his assertion of the
Code Sect. 19.2-294 bar. There is no dispute that the sale
of marijuana was "the same act" that constituted a
violation of the misdemeanor and felony statutes in the incidents
in question. Under these circumstances, the plain language of
Code Sect. 19.2-294 would appear to provide that the
"conviction" under the misdemeanor statute in the
general district court "shall be a bar to a prosecution or
proceeding" under the felony statute in the circuit court.

The majority, however, rejects this reading of
Code Sect. 19.2-294 and the above result it mandates.
Rather, the majority concludes that this statute does not apply
to "simultaneous prosecutions" and that Phillips
felony charges were not the subject of "successive"
prosecutions because the misdemeanor and felony charges were
heard in a "single, evidentiary hearing" in the general
district court. No such limiting language or express exception
appears in the statute. Moreover, the majoritys analysis
ignores the express "prosecution or proceeding"
provision of the statute.

We have previously held that "[t]he key
words in [Code Sect. 19.2-294] are prosecution or
proceeding. While they embrace in some respects the same
definition, they are not synonymous. Neither word is technical
and proceeding has a broader meaning." Sigmon
v. Commonwealth, 200 Va. 258, 266, 105 S.E.2d 171, 177
(1958). Pertinent to the present case, in Sigmon we cited
with approval authority defining the word "proceeding"
to include "an inquiry before a grand jury." Id.,
105 S.E.2d at 178. In light of our holding in Sigmon, in
my view, there is simply no basis upon which to limit the
application of Code Sect. 19.2-294 to "successive
prosecutions." Rather, Phillips misdemeanor
convictions barred the "proceeding" before the grand
jury and the trial and convictions on the felony charges in the
circuit court.

But my disagreement with the majoritys
analysis does not end there. The majority essentially adopts the
analysis from a series of decisions of the Court of Appeals
holding that Code Sect. 19.2-294 does not bar multiple
convictions for the same act under different statutes when those
convictions are obtained in a single trial. See, e.g.,Hall, 14 Va. App. at 900, 421 S.E.2d at 461. In Hall,
the Court of Appeals reasoned that "[a] prosecution or
proceeding after a conviction, by definition
requires multiple or successive proceedings or
prosecutions." Id. at 897, 421 S.E.2d at 459. In
order to uphold the single trial exclusion to the Code
Sect. 19.2-294 bar it created in Hall, in subsequent
cases the Court of Appeals held that a "simultaneously
charged" defendant was not subjected to successive
prosecutions where one charge resulted in a conviction in the
general district court while the other required further
proceedings and ultimately resulted in a conviction in the
circuit court. Slater v. Commonwealth, 15 Va. App. 593,
595-96, 425 S.E.2d 816, 817 (1993); see alsoFreeman v.
Commonwealth, 14 Va. App. 126, 129, 414 S.E.2d 871, 873
(1992). Thus, in Phillips v. Commonwealth, the Court of
Appeals held that even when the misdemeanor and felony charges
are brought at separate times, they nevertheless are part of a
single prosecution if the cases are heard in a single evidentiary
hearing. 27 Va. App. 674, 680, 500 S.E.2d 848, 851 (1998).

In Sigmon, as noted by the majority, we
stated that although the language of Code Sect. 19.2-294
does not state that it provides a constitutional defense of
former jeopardy, "it amounts to such a defense in purpose
and desired effect." Sigmon, 200 Va. 263, 105 S.E.2d
at 175-76. Drawing a similar conclusion, the Court of Appeal in Hall
first grafted a constitutional analysis onto this statute:

The statute, like the constitutional
former jeopardy protection announced in Grady [v.
Corbin, 495 U.S. 508 (1990)], was designed to prevent
the prosecutorial practices of subjecting an accused to
the hazards of vexatious, multiple prosecutions. Code
Sect. 19.2-294 prevents a prosecutor from subjecting
an accused through successive prosecutions to
"embarrassment, expense and ordeal and compelling
him [or her] to live in a continuing state of anxiety and
insecurity." Grady, [495 U.S. at 518]. Additionally,
the statute, by limiting its reach to successive
prosecutions for multiple offenses for the same act,
prevents prosecutors from using the prosecution of a
minor offense as a "dress rehearsal" for a more
serious, later prosecution.

Hall, 14 Va. App. at 899, 421 S.E.2d at
460-61.

While this analysis would apply to questions of
constitutional former jeopardy, the express language of Code
Sect. 19.2-294 simply does not require a resort to such
analysis. Moreover, as a legislative response to Arrington,
the statute clearly addresses a broader array of circumstances
than those subsumed within constitutional issues of former
jeopardy. Rather, the intent of Code Sect. 19.2-294 is to
avoid the hardship manifest when a defendant is subject to
convictions under two statutes for a single act. Simply put, this
statute in express terms prohibits multiple convictions arising
from a single act without regard to whether those convictions
occur in a single trial or successive trials. In Phillips
case, that meaning and effect should be readily apparent.
Phillips was convicted in the general district court for conduct
arising from two acts and then was subject to proceedings before
the grand jury and in the circuit court for charges related to
the same acts. Code Sect. 19.2-294 bars the latter
proceedings and consequently bars Phillips convictions in
the circuit court.

For these reasons, I would reverse the judgment
of the Court of Appeals and hold that Code Sect. 19.2-294
bars convictions for the same act in a single trial as well as
consecutive trials.

FOOTNOTES:

[1]Phillips raises two additional
assignments of error that are procedurally barred. First, he
asserts that the Court of Appeals "erred by ignoring the
legislative history underlying Code Sect. 19.2-294 and the
fact that the statute refers disjunctively to ‘prosecution’ or
‘proceeding.’" Second, he argues that the Court of Appeals
"erred by ignoring the fact that Code Sect. 19.2-294 is
remedial legislation relating to matters of a penal nature and,
thus, must be construed strictly against the Commonwealth and
favorably to the accused." We do not address these
assignments of error because Phillips did not argue these issues
in the trial court and before the panel of the Court of Appeals.
Rule 5:25.